Wills/Probate & Estate Disputes FAQs
Author(s):LAC Lawyers
Publish Date: March 22, 2008
Q. My brother and myself have recently been cheated out of our inheritance by our cousins who had our grandfather execute a new will in their favour whilst he was in a nursing home suffering from dementia. Are we entitled to make a claim in these circumstances?
A. Yes, there are a number of grounds which may apply in the circumstances one of which is fraud or lack of capacity and another would fall within the provisions e.g. of the NSW Family Provisions Act. Given the seriousness of these cases a lawyer should be engaged as soon as possible to ensure that your rights are fully protected.
Q. Can I arrange for my husband’s funeral even though we were separated at the time and he has no will?
A. Yes, but in order for your estranged husband’s estate to be properly dealt with the Supreme Court will need to be approached for letters of administration. Assets need to be distributed to beneficiaries according to a pre-set order and a lawyer needs to be consulted to ensure that this occurs properly.
Q. How long do I have to bring a claim e.g. under the NSW Family Provisions Act?
A. Eighteen months but it should be brought sooner rather than later.
Q. I have been left out of my father’s will. Can I make a claim on his estate?
A. Yes. You should retain a lawyer to advise you about your claim. Your claim can be negotiated with the Executor or Administrator or an action brought under the NSW Family Provisions Act.
Q. I have been left property by a will and the Executor refuses to tell me what is happening. What can I do?
A. Under Probate Law a distribution is to be made within one year. You need to consult a lawyer to make sure the Executor reports to beneficiaries. Sometimes Executors are unclear about their duties and they should seek advice from a lawyer to ensure they are acting correctly. These costs can be claimed from the estate as they were incurred for the benefit of all beneficiaries.
Q. My father divorced my mother over 20 years ago and remarried. Following this he made a will leaving everything to her and my stepsister. He died recently and I found he had not changed his will although he had promised me that I would be treated equally with my stepsister. What can I do?
A. In New South Wales you are entitled to lodge a Family Provisions Act claim. Essentially this entitles you to make a claim against your father’s estate where you have been excluded as a beneficiary although you originally form part of his household. In these circumstances you will need to obtain expert legal representation as these matters are dealt with by the Equity Division of the Supreme Court of NSW.
Q. My grandmother died recently and I was left out of the will. Is there anything I can do?
A. No. Unless at some stage during your life you formed part of her domestic establishment having lived with her for an extended period of time. Otherwise you would need to be able to prove a trust by her saying that on her death you were definitely going to receive a substantial share of her estate.
Q. I am the trustee of a family discretionary trust and am concerned as to whether there is something more I should do to protect the trust and everybody’s entitlements. Is there anything you can assist me with?
A. Yes. There are a number of family discretionary trusts which have a single trustee which is unfortunate. The best way of dealing with a trust is to have a corporate trustee with two directors. This overcomes the difficulty that should the trustee die the trust could fail if proper provision has not been made in this regard. Trusts are like everything else, they can be complicated and require proper attention to ensure they work for the life of the trust which is normally 80 years.
Q. Will it take me very long to obtain a certificate of independent legal advice
A. The answer is that it depends upon what is involved to review all the documents before the certificate can be issued. There are various insurance and legal requirements that need to be met to ensure that the client is properly advised, and normally the charges are based on the amount of time taken at the applicable hourly rate charged by the legal practice. A solicitor would be guilty of professional misconduct if they issue a certificate without properly reviewing and explaining the documents.
Q. My brother and sister had themselves appointed as joint executors of my late mother’s estate. All of us are supposed to receive a third share each but in my case they convinced my late mother that mine should be held in trust even though I am over 60 years of age. What can I do?
A. The matter can either be negotiated with them or the court approached to overcome the testamentary trust as you are a responsible person.
Q. Can the solicitor acting for the estate also act for me at the same time where I am in conflict with the estate?
A. No. The solicitor has a conflict of interest and should never have accepted your instructions to act on your behalf where there is a conflict of interest.
Q. Do I need the services of a solicitor to help me draft a will?
A. Yes. Although there are a number Wills Kits around they cannot address the multitude of cases which may come up when drafting a Will. By retaining a solicitor you obtain a purpose drafted document which specifically suits your purposes and which ensures your beneficiaries are treated as you intended. It will also ensure that the Will does not fail because proper formalities have not been complied with. It is important to remember that no solicitor will ever get rich drafting Wills as the cost incurred is not representative of the amount of time taken to properly consider and draft a client’s Will.
Q. My father passed away recently and nobody knows where the will is. Is there any way we can find out and is there a central register of wills?
A. Yes. Advertising and/or due search and enquiry are the only means available to locate a will. There is no central wills register which can be searched to alleviate this problem.
Q. My father, who lives interstate recently died and although I have been estranged from him for several years am I able to make a claim against his estate where I have been left out of his will? Can you assist?
A. Yes, provided you were a bona fide member of his domestic establishment during the course of his life and that he has not sought to exclude you from the operation of the will then you are at liberty to make an application for financial support provided your circumstances justify this.
Q. Are you able to draft wills for same-sex couples?
A. Yes. We regularly deal with same-sex couples and draft wills for them.
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